Citation Nr: 22018474 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-57 011 DATE: March 29, 2022 ORDER New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran was denied service connection for tinnitus in an August 1981 rating decision. He did not file a timely notice of disagreement (NOD) or submit new and material evidence during the appeal period, rendering that rating decision final. 2. Evidence received since the August 1981 rating decision raises a reasonable possibility of substantiating the underlying claim for entitlement to service connection for tinnitus. 3. The evidence is at least in approximate balance that the Veteran has tinnitus that onset in service and has continued since service. CONCLUSIONS OF LAW 1. The August 1981 rating decision denying entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.52 (2021). 2. Additional evidence received since the August 1981 rating decision is new and material and the claim for entitlement to service connection for tinnitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1969 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Substantive Appeal filed in November 2017, the Veteran requested a videoconference hearing. The RO scheduled a hearing for January 24, 2020, and in December 2019 sent written notice of this hearing to the Veteran. The RO also sent a copy of the notice to the Veteran's representative. The Veteran did not appear for the January 2020 videoconference hearing. The Veteran did not show good cause for his absence or request a new hearing within 15 days, and therefore the case will be processed as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704. 1. New and material evidence to reopen the claim for service connection for tinnitus The Veteran seeks to reopen a previously denied claim for entitlement to service connection for tinnitus. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38C.F.R. §3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 19.52, 20.201, 20.202, 20.203. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the underlying claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. Here, the last prior final denial for the claim for service connection for tinnitus was an August 1981 rating decision. It is final because the Veteran did not submit a notice of disagreement within one year of notification of the determination. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. Therefore, the Board must look to the evidence submitted since August 1981 for new and material evidence. When determining whether evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge, 155 F.3d at 1356. In undertaking this analysis, the Board notes that the August 1981 rating decision denied service connection because the RO determined that there was no evidence of complaints of tinnitus during service. Evidence associated with the claims file since August 1981 includes a January 2019 Disability Benefits Questionnaire for Hearing Loss and Tinnitus, prepared by a VA contractor. The Veteran told the examiner that his tinnitus onset during active-duty service in the Vietnam War due to a nearby mortar explosion. The examiner concluded that the Veteran's tinnitus is at least as likely as not caused by military noise exposure because the Veteran was exposed to excessive noise exposure during service which resulted in acoustic trauma. As this evidence was not of record at the time of the August 1981 denial and it relates to an unestablished fact necessary to substantiate the Veteran's claim, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for tinnitus is reopened. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus onset during active-duty service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (such as tinnitus, as an organic disease of the nervous system) will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Turning to the requirements for service connection, the first element is present. The September 2013 and January 2019 examiners both concluded that the Veteran has tinnitus. Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has specifically been found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported that he had tinnitus in both examinations. Concerning the second element of service connection, the Veteran's military occupational specialty was 11C20 indirect fire crewman, which is listed as being "highly probable" for hazardous noise exposure. The Veteran reported exposure to noises including mortar fire, firearms, helicopters, and explosions. See C&P Exam, January 23, 2019. The claim is credible and consistent with the duties of an indirect fire crewman; therefore, the preponderance of the evidence supports the Veteran's in-service exposure to hazardous noise. Finally, the evidence indicates that the Veteran's tinnitus was caused by his service. The January 2019 VA-contracted examiner noted that the Veteran said that his tinnitus started during service and concluded that the Veteran's tinnitus was caused by service because the Veteran was exposed to excessive noise exposure during service which resulted in acoustic trauma. The September 2013 examiner concluded that the tinnitus was less likely than not caused by service because there is no evidence of complaints or tinnitus during service. Concerning lay evidence, the evidence does not show complaints or treatment for tinnitus during service. However, the Veteran reported in his September 2013 VA examination and his January 2019 examination by a VA contractor that the tinnitus started during service. The Veteran told the January 2019 VA-contracted examiner that his tinnitus started when a mortar fired nearby. The Veteran filed his earlier claim for service connection for tinnitus in July 1981; that July 1981 claim also stated that he had a "ringing sensation off and on since" a mortar firing nearby during service. The Veteran also filed a claim for unspecified ear trouble in 1971 shortly after separation from service. A September 2014 Statement in Support of Claim also stated that the tinnitus onset firing mortars while in Vietnam. An August 2013 Statement in Support of Claim stated that "I have suffered with persistent ringing in my ears since I was discharged." The January 2019 medical opinion holds more probative value than the September 2013 opinion because it is consistent with the Veteran's statements that tinnitus onset during service and his reports of tinnitus beginning in 1981 or 1971. The preponderance of the evidence indicates that the Veteran's tinnitus was caused by noise exposure during his active-duty service. Accordingly, service connection for tinnitus is warranted. See 38 C.F.R. § 3.102. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.